Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837–1857 (review)

Austin Allen provides us with a new way to understand why United States Supreme Court Chief Justice Roger Taney notoriously ruled in Dred Scott v. Sandford (1857) that black Americans were not citizens of the United States and that Congress could not ban slavery in the territories. He suggests that our dominant interpretations, which characterize (and condemn) Taney's opinion as a work of sectional partisanship and judicial overreaching, have too closely followed the partisan Republican critique that emerged in the decision's immediate aftermath. As a result, scholars have not taken seriously other reasons why Taney issued a ruling that today strikes us as so morally problematic. Rather than seeing the decision as a judicial response to an external crisis over slavery, Allen argues that Taney's opinion was as much a product of the court resolving its own internal crisis. Allen situates Dred Scott within the doctrinal web that the Taney Court created in the previous twenty years, and he makes a solid case that Taney's ruling was an unintended consequence of a court divided by a number of issues, only one of which was slavery and some of which are surprising. This book makes an important contribution not only to our understanding of Dred Scott but also to our knowledge of the Taney Court and its relationship to antebellum American society.

Allen's work comprises nine chapters arranged in three sections. The first two sections unearth the contexts he sees as vital to understanding Taney's ruling, while the third discusses Dred Scott as shaped by these contexts. One of the strengths of Allen's work is his treatment of the Taney Court as an institution with an identity, and in the first section he lays out the ideological and cultural conditions shaping the court and its jurisprudence. Though attentive to the internal dissent that made the Taney Court far less unified than the Marshall Court, Allen exposes how Taney Court members—many of them partisan Democrats—collectively wrestled with the court's role in a legal and political system predicated on popular sovereignty. Allen suggests that the court conceived of itself as a facilitator of self-rule, and he distills two general manifestations. First, in constitutional cases the court strove to balance its general deference to state legislatures with the protection of the supremacy of federal authority. Second, in private law cases the court displayed concern for social order in a self-governing society and applied common-law rules to compel individuals to stand by market obligations.

These two broad commitments collided in Swift v. Tyson (1842), a case that came to the court through its diversity jurisdiction by which it was authorized to hear cases involving parties from different states. In Swift, the court, led by Joseph Story, issued a highly nationalistic ruling that invented a federal common law of commerce to guide its adjudication of commercial disputes between citizens of different states. Though Swift did not involve slavery, Allen shows that it carried clear antislavery implications. It inaugurated a new trend in which the court would be less deferential to state policy and state court opinions in diversity suits. When Dred Scott reached the court through diversity jurisdiction, it was difficult for the court simply to defer to the Missouri Supreme Court that ruled that Scott remained a slave despite having traveled in free territory. Developments in diversity begun in Swift pushed the court to a more substantive ruling in Dred Scott.

Allen's second section contains his most interesting contributions. First, he details the conflict-ridden development of the court's method of handling cases involving slavery outside of diversity jurisdiction. This method, which matured in Strader v. Graham (1851), was to defer to state law by asserting a lack of jurisdiction. Commentators have puzzled over why Taney opted for such a broad ruling in Dred Scott...